ukstrasbourgspotlighthttps://ukstrasbourgspotlight.wordpress.com
a spotlight on the UK's relationship with the European Court of Human RightsFri, 02 Jun 2017 06:18:55 +0000enhourly1http://wordpress.com/https://s2.wp.com/i/buttonw-com.pngukstrasbourgspotlighthttps://ukstrasbourgspotlight.wordpress.com
University of Konstanz, Conference Paperhttps://ukstrasbourgspotlight.wordpress.com/2017/06/02/university-of-konstanz-conference-paper/
https://ukstrasbourgspotlight.wordpress.com/2017/06/02/university-of-konstanz-conference-paper/#respondFri, 02 Jun 2017 04:10:38 +0000http://ukstrasbourgspotlight.wordpress.com/?p=1375]]>I am presenting a paper on ‘UK Principled Resistance to Strasbourg – a new Paradigm?’ today, at the University of Konstanz (see here for details of the Conference).

]]>https://ukstrasbourgspotlight.wordpress.com/2017/06/02/university-of-konstanz-conference-paper/feed/0batesedUK membership of the ECHR: continuation of ‘unfinished business’ or a window of opportunity?https://ukstrasbourgspotlight.wordpress.com/2017/05/18/uk-membership-of-the-echr-continuation-of-unfinished-business-or-a-window-of-opportunity/
https://ukstrasbourgspotlight.wordpress.com/2017/05/18/uk-membership-of-the-echr-continuation-of-unfinished-business-or-a-window-of-opportunity/#respondThu, 18 May 2017 13:47:00 +0000http://ukstrasbourgspotlight.wordpress.com/?p=1334]]>This post proceeds on the assumption that the Conservatives will win the June election, with their manifesto commitment that withdrawal from the ECHR (‘BrECHRit’) will not occur in ‘the next Parliament’. It is submitted that such a scenario poses a threat, but also offers a window of opportunity. The threat is that there will be a continuation of what we have seen since around 2012 (if not before): the implied threat to withdraw, and heated anti-Strasbourg rhetoric every time UK-Strasbourg relations come under strain (with damaging effects on the ECHR). The opportunity is that we now have a period to push forward the case for the UK’s continuing membership of the ECHR, based on careful and informed analysis of the Strasbourg system as it functions today (not one based on dated or false narratives) and affects the UK. This information can then be drawn upon for when debate on the UK’s membership of the ECHR resurfaces, which, I contend, is highly likely to happen – unless arguments are presented in a convincing way to stop that.

With the Conservative Party well ahead in the opinion polls, the publication of their manifesto today was met with a sighs of relief by human rights lawyers in the UK, and in Strasbourg. It states that:

The UK will remain a signatory to the ECHR ‘for the duration of the next Parliament’.

That the Conservatives will not ‘repeal or replace’ of the Human Rights Act ‘while the process of Brexit is underway’, but that ‘we will consider our human rights legal framework when the process of leaving the EU concludes’.

These proposals will disappoint some.

Last December The Daily Telegraphreported that ‘BrECHRit’ was to be included in (what was then assumed to be) the Conservatives’ 2020 manifesto. Recently Lord Faulks QC advocated that the UK should seize the moment to obtain a ‘substantial majority’ in the next election to ‘enable the Prime Minister to leave the jurisdiction of the ECHR’. As a member of the Commission on a Bill of Rights (of 2011) Lord Faulks (with Jonathan Fischer QC) published a separate opinion ominously entitled, ‘Unfinished Business’ (other separate opinions feared that the UK was on a path to withdrawal from the ECHR).

It seems highly unlikely, however, that we have heard the last on ‘BrECHRit’, and rather likely that the ‘unfinished business’ narrative will endure. Is there not every chance that matters will continue in the vein of recent years with certain politicians projecting an enduring, implied threat of ‘BrECHRit’, each time UK-Strasbourg relations flare up?

To that end, aside from more familiar issues that seem likely to come round again – the rights of non-deportable suspected terrorists, human rights and immigration issues etc – the manifesto signals another future flash point. It states that

“British troops will in future [not] be subject to… the [law of] the European Court of Human Rights”.

Whilst domestic law can be amended to that effect – which, presumably, would involve an amendment to the Human Rights Act – the above goal is not possible while the UK is a member of the ECHR. (To be fair, the manifesto probably refers to a proposed UK derogation from the ECHR; but that would be subject to Strasbourg review, ultimately at least).

So, there seems a good chance that Prime Minister Theresa May will have another item to add to her anti-Strasbourg list of April 2016. Back then (when, in fact, she was Home Secretary) she complained:

“The ECHR can bind the hands of Parliament, adds nothing to our prosperity, makes us less secure by preventing the deportation of dangerous foreign nationals – and does nothing to change the attitudes of Governments like Russia’s when it comes to human rights… If we want to reform human rights laws in this country it isn’t the EU we should leave but the ECHR and the jurisdiction of its Court.”

Threat and window of opportunity?

Against this overall backdrop, I predict that under a future Conservative government we are very likely to see a continuation of what has occurred over the last few years: denigration of the ECHR, and an implied threat to withdraw at some stage (if not within the next Parliament). Could a future Conservative manifesto (2022) include a commitment to withdraw?

The overall situation just described can only have a harmful, destabilizing effect on the Convention system. Its beleaguered situation is such that it desperately needs the firm support of countries like the UK if it is to stand a better chance of fulfilling its vital mission of helping to achieve democratic security across Europe.

The window of opportunity, then, is that we now have a period of time in which we know there will be no withdrawal. This can be used to: (i) bring some balance to some of the sweeping arguments politicians have employed against the ECHR; and (ii) to underline why preservation of, indeed fulsome support for, the Convention is consistent with the UK’s national interest.

I will leave (ii) to a future post – and intend to follow this up with future posts and research.

As for (i), a range of diverse arguments and issues are usually brought up in attacks on the Court, often amounting to sweeping claims or assertions, as with (I submit) the passage from Theresa May quoted above. It is time for some balance and detailed consideration of the arguments – here too there will be future posts and research.

The benefits of careful consideration of the actual arguments?

To demonstrate how a detailed consideration of issues related to ECHR withdrawal is worthwhile to gaining a proper understanding of them, let us briefly consider the prisoner voting saga.

Without recounting all aspects, we should recall that February 2011 witnessed the House of Commons strongly rejecting a change in the law, and by a very large majority. The relevant debate hardly engaged with the substantive issues related to prisoner voting, being dominated by an anti-Strasbourg agenda. The rhetoric continued even after the ECtHR adjusted its position in 2012 in a case of concerning Italy (Scoppola), which the UK was given permission to intervene in, and which, arguably, broadened the margin of appreciation available to it.

It is striking, however, that since 2013-2014 the political rhetoric on this topic has almost evaporated. Why might that be? One cannot say for sure, of course, but let us consider the following.

In 2013 over two days seven Justices of the Supreme Court heard a case on prisoner voting (Chester), arguments being presented from ten barristers, including five QCs. Having engaged with the issues, the ensuing judgment (October 2013) recognised that Strasbourg’s position deserved respect; the merits and demerits of prisoner voting were finely balanced. Baroness Hale expressed ‘some sympathy for the view of the Strasbourg court that our present law is arbitrary and indiscriminate’ (para 98). Lord Sumption was more critical of Strasbourg, but he agreed that it was ‘an extreme suggestion’ to suggest that the matter at stake was ‘a fundamental feature of the law of the United Kingdom’ (para 137).

In December 2013, a Joint Parliamentary Committee reported on the prisoner voting issue. Many thought that it would endorse the ‘no-reform’ position adopted by MPs and encouraged by (former) PM Cameron’s infamous ‘physically ill’ statement. Lord Phillips, a member of the Committee, subsequently recounted how, ‘from first to last’ a ‘minority of the Committee, including its chair, was resolutely determined’ to ‘enact a statute designed to defy Strasbourg’. Yet, upon close examination of the issues, and after taking evidence from over 40 experts, the Committee concluded that there was a case for reform of UK law. It noted that only a comparative minor change was necessary, and proposed such a course.

To be clear, the Committee’s Report has been ignored by the government, which asserts that MPs have no appetite to change the law.

Nonetheless, the point I wish to make is that the calm, careful, detached and dispassionate analysis provided by the UK Supreme Court and a Joint Parliamentary Committee has exposed the inaccuracy of the earlier political rhetoric on this matter.

It also brings into focus comments such as that made by Theresa May (above), that the ECHR ‘bind[s] the hands of Parliament’. The prisoner voting issue was quite revealing in that regard. After all, the UK is only required to reform the law within the very broad boundaries Strasbourg has delineated, and in a way that a specialist Committee of Parliament supported!

Time for the same type of calm, careful, detached and dispassionate analysis of the other issues related to ‘BrECHRit’? I think so.

]]>https://ukstrasbourgspotlight.wordpress.com/2017/05/18/uk-membership-of-the-echr-continuation-of-unfinished-business-or-a-window-of-opportunity/feed/0batesed18 May 2017.pngImplementation of Judgments of the European Court of Human Rightshttps://ukstrasbourgspotlight.wordpress.com/2017/05/16/implementation-of-judgments-of-the-european-court-of-human-rights/
https://ukstrasbourgspotlight.wordpress.com/2017/05/16/implementation-of-judgments-of-the-european-court-of-human-rights/#respondTue, 16 May 2017 16:14:01 +0000http://ukstrasbourgspotlight.wordpress.com/?p=1304]]>Thank you very much indeed to the Bingham Centre for the Rule of Law (working with Leicester Law School) for hosting a highly interesting and informative event on the state of play regarding execution of Strasbourg judgments. The event was last night, and, I believe, a summary will appear on the Bingham web site in due course.

Merris Amos (QMUL) presented a insightful paper focussing in UK cases, against the backdrop of UK-Strasbourg relations and the domestic landscape of human rights protection; in her paper Eleanor Hourigan (Dep Permanent Representative, UK Delegation to the CoE) offered some insiders’ perspectives on the Committee of Ministers’ process ; Nuala Mole (Aire Centre) provided reflections on her long experience as a Strasbourg litigator, offering some suggestions on areas for improvement; and Prof Philip Leach EHRAC/ Middlesex University added to those perspectives with some important and graphic illustrations of why the process of execution is so important, and the challenges being thrown up.

]]>https://ukstrasbourgspotlight.wordpress.com/2017/05/16/implementation-of-judgments-of-the-european-court-of-human-rights/feed/0batesedbing 15 may‘Implementation of Judgments of the European Court of Human Rights: Opportunities and Challenges for the Rule of Law’ (Bingham Centre for the Rule of Law), 15th May 2017.https://ukstrasbourgspotlight.wordpress.com/2017/05/04/implementation-of-judgments-of-the-european-court-of-human-rights-opportunities-and-challenges-for-the-rule-of-law-bingham-centre-for-the-rule-of-law-15th-may-2017/
https://ukstrasbourgspotlight.wordpress.com/2017/05/04/implementation-of-judgments-of-the-european-court-of-human-rights-opportunities-and-challenges-for-the-rule-of-law-bingham-centre-for-the-rule-of-law-15th-may-2017/#respondThu, 04 May 2017 16:29:11 +0000http://ukstrasbourgspotlight.wordpress.com/?p=1296]]>

On 15 May 2017, the Bingham Centre and Leicester Law School are organising an event in London, focusing on the implementation of the Court’s judgments.

Speakers at the event will discuss the UK’s record of implementation and the impact of the Court’s judgments in the UK. They will consider the UK government’s recent report ‘Responding to Human Rights Judgments’ which outlines its position on the implementation of the Court’s judgments and responds to recommendations made by the Joint Committee on Human Rights in its 2015 scrutiny report ‘Human Rights Judgments’. We will also hear a UK government perspective “from the inside” on the Committee of Ministers and its work supervising the execution of judgments.

Speakers will then consider the wider picture of implementation across the member states and will reflect on the process for the execution of judgments and the role of the Committee of Ministers in this regard.

There was a very interesting event yesterday at the Bonavero Institute of Human Rights (BIHR), Faculty of Law, University of Oxford, on the topic of ‘Adjudicating Rights’. Professor Kate O’Regan opened and chaired the event, which included presentations from Judge Paulo Pinto de Albuquerque (European Court of Human Rights) and from Professor Jeff King (UCL). It was an excellent event, very thought-provoking and well received by a good audience in attendance. The event was ‘videoed’, so hopefully we can look forward to seeing that on the web, and perhaps my stumbling question to the panel will appear on it – or be edited out!

The reason I wanted to write this post is as follows. Often when attending events like yesterday’s I ask a question related to the limitations on the Court’s jurisdiction and authority. Sometimes I feel that such questions are perceived as an unpatriotic swipe at human rights, and the Strasbourg Court (which is certainly not my intention; indeed, quite the contrary, for I wish to see the Court preserve its authority, by it recognising the limitations that should (in my opinion) apply to it).

I make this point generally here, and not in relation to yesterday’s event, and, to be clear, at all events the speakers have always been extremely respectful and polite in their answers and generous with their time afterwards (as was so yesterday). Nonetheless, given the topic of yesterday’s event, which also touched on ‘separation of powers’, it seemed appropriate for me to write these thoughts down .

Here, then, are some thoughts inspired by yesterday’s event (and let me thank Judge Pinto Pinto de Albuquerque, Professor King, and Professor O’Regan and the BIHR for inspiring them, although, of course, they are not responsible for them).

1)Point of departure: the types of issues that the separation of powers doctrine raises – in particular, those related to expertise and institutional competence – are especially importance for an international human rights court, precisely because of its international status. The subsidiary nature of international review has a relevance here. Does one accept this as the point of departure?

2) If one does, then scope may be opened up for the propositions that I now set out (but less so, if the point of departure is not accepted).

a.There is no contradiction between believing, passionately, on the one hand, that human rights are vital, but that, on the other, international institutions may need to respect the principle (within reasonable boundaries) that certain decisions related human rights are appropriately decided at the national level.

b.It is not a contradiction to say, on the one hand, that certain prisoners should be enfranchised, and that, on the other hand, to maintain that Strasbourg should not be the institution to initiate legal change in this field.

3)3) Separation of powers issues may become more important for an international court over time, as it, and the wider system within which it operates, matures and evolves. Of course, this does depend on context and the applicable landscape. Here, however, consider the proposition that national authorities may obtain a greater claim to institutional competence the more they integrate and engage with, and, of course, properly apply, relevant human rights standards: faithful incorporation of the Convention, and its application in good faith by national authorities should be of considerable relevance here. In should affect the distribution of powers between the national and international levels.

4) As a personal opinion, I believe that the point just made may be of particular importance to a court such as Strasbourg. It is probably a fact of life for that Court – at least one that applies in the UK context – that the more it moves into relatively controversial territory in respect of which it was not self-evidently set up (say prisoner voting, perhaps) the more it risks questions arising about the source of the authority that it has to make judgments in that field. It may well be that those questions arise precisely because the Court in question is an international institution, i.e. not part of the constitutional order of the State and, as such, is seen as ‘constitutionally legitimate’. Such questions may prompt a debate about the constitutional legitimacy of the institution that is being criticised when acting in the controversial field (to be distinguished from its overall legitimacy); and at that point there is a risk that the consent of the States – or some of them – who are subject to the jurisdiction of the Court, and upon whom its success rests, may start to be threatened. Here again the special nature of an international court may be relevant; after all, it relies upon the consent, good faith and cooperation of these States to make it effective via enforcement of judgments (even if there is an international legal obligation to enforce them).

5)Does the above amount to an unpatriotic swipe at the Court, or is it a statement seeking to make a point about realistic limitations applying with respect to its authority?

6) Either way, when justifying the Court’s authority reference to the nature of the Convention as a ‘living instrument’, i.e. the evolutive interpretation doctrine, is usually brought up, almost as if it is an ace-card to win any argument, or trump any criticism. Here it seems to me that there is a risk that defenders of the Court use this point as a catch-all response to criticisms. (Indeed, if valid criticism can be made of those who roll out the ‘aggrandisement’ argument in a blunt and sweeping fashion, a similar point could be made about citation the Convention as ‘a living instrument’ by some of its defenders). Often too, the implicit (or express) suggestion is that any criticism of the Court amounts to a questioning of the evolutive interpretation doctrine itself, and a rallying cry for ‘originalism’ and the proposition that the Court can never enter into new territory. This is a flawed perspective, I respectfully submit. The issue, I suggest, is not the validity of the evolutive interpretation doctrine, but how far, and with what muscularity, it can be employed legitimately.

7)With respect to that last point Hirst v UK is an emblematic case (prisoner voting again[groan, forgive me]). The Strasbourg Court was divided 12 v 5; if one reads the minority view (a joint dissent) it is evident that they are not contesting evolutive interpretation in principle (of course not), but how far it could be pushed in the case at hand. They argued, in essence, that the majority were applying the doctrine too boldly for the case at hand, given the Court’s status as an international court. As the dissenters concluded:

Our own opinion whether persons serving a prison sentence should be allowed to vote in general or other elections matters little. Taking into account the sensitive political character of this issue, the diversity of the legal systems within the Contracting States and the lack of a sufficiently clear basis for such a right in Article 3 of Protocol No. 1, we are not able to accept that it is for the Court to impose on national legal systems an obligation either to abolish disenfranchisement for prisoners or to allow it only to a very limited extent

7)8) This brings me back to the first numbered point above. To what extent do separation of powers issues become more acute for a court whose jurisdiction is international in nature? It seems to me that the minority in Hirst saw the matter a different way to the majority. Was that minority taking an unpatriotic swipe at their own court? I don’t think so; they were making the point that this was risky terrain for the Court to get into. Unfortunately, they have been proven correct*. That said, I would also submit that the Court has modified its approach in recent years; its is less bold, and one does not tend to see judgments like Hirst. Is that back-tracking by a Court facing a crisis of authority? Perhaps. But perhaps it could also be the Court recognising the limits of its authority, and more conscious than before of ‘separation of powers’ issues.

(T (*To be very clear, this is nota reason for refusal to implement the judgment. It must be implemented, and there are very good reasons to do so, in order to maintain the Court’s authority, and also because only a very minor change to UK law is required to do so. There are many other reasons too).

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https://ukstrasbourgspotlight.wordpress.com/2017/04/29/unpatriotic-swipes-at-the-court-separation-of-powers-and-international-human-rights-control/feed/0batesedbihr_side_largeTheresa May: to remain faithful to ‘the basic principles of human rights found in the original ECHR’?https://ukstrasbourgspotlight.wordpress.com/2017/04/19/theresa-may-to-remain-faithful-to-the-basic-principles-of-human-rights-found-in-the-original-echr/
https://ukstrasbourgspotlight.wordpress.com/2017/04/19/theresa-may-to-remain-faithful-to-the-basic-principles-of-human-rights-found-in-the-original-echr/#respondWed, 19 Apr 2017 18:19:22 +0000http://ukstrasbourgspotlight.wordpress.com/?p=1122]]>This is a slightly modified version of a book review of Marco Duranti, The Conservative Human Rights Revolution: European Identity, Transnational Politics, and the Origins of the European Convention, Oxford University Press, 20 Dec 2016 (it was originally published on the Lawfare website). In a work of great depth and incisive analysis Duranti looks back to the mind-set of those Conservative politicians in the UK who backed the Convention in 1950. His account should give pause for thought for today’s Conservative politicians advocating withdrawal from the ECHR and advancing a self-righteous, ‘Britain-knows-best’ view in relation to what is portrayed as a meddling Strasbourg Court.

***

An election is due to be held in the UK on 8 June 2017. We await the Conservative Party’s manifesto, and there is a real sense of anticipation regarding what it may say about the UK’s membership of the ECHR.

That is because last December the British press reported that the UK Conservative Party may include a commitment for the UK to withdraw from the European Convention on Human Rights (‘ECHR’) in its 2020 election manifesto. A decade or so ago such a proposal would have been inconceivable. Today, however, the anti-Strasbourg mood, which is mainly (but not exclusively) concentrated amongst a sector of UK Conservatives, is based on a variety of factors. One is perception that the European Court of Human Rights (‘Strasbourg’, ‘the Court’) has aggrandized its jurisdiction to become an overly intrusive institution, and that this now entitles the UK to withdraw from the ECHR.

This was the narrative of a 2014 Conservative party document (entitled, ‘Protecting Human Rights in the UK’) which maintained that the UK had had a major role in the drafting of a good Convention text, and that it was Strasbourg’s misinterpretation of the same which was at the root of the problem with European human rights law today. It concluded by stating that the UK stood by ‘the commitments made when we signed the Convention, and it is only the subsequent approach of the Court … that [has] eroded public confidence in our human rights framework’.

Against this backdrop the publication of Dr Marco Duranti’s book is very timely, is, and should be, significant. As he puts it,

‘[although some of the rulings of the Strasbourg court have been unwelcome to conservatives, the underlying principles of which it operates today are more in line with the original intent of its conservative progenitors than commonly assumed’ (pp 340-341).

The Conservative Human Rights Revolution should, therefore, give pause for thought for politicians advancing a self-righteous, Britain-knows-best view in relation to what is portrayed as a meddling Strasbourg Court that has lost sight of the Convention’s origins.

That is because Duranti’s account shines new light on the motivation of some of the major figures who led calls for a European Human Rights guarantee, who had a leading hand in producing initial drafts of it, and who then exerted sufficient pressure on the (reluctant) governments of the day, including the UK, to ensure that an ECHR came into being. Those figures included leading Conservative politicians of the era, such as Winston Churchill, but especially David Maxwell-Fyfe. As Duranti puts it, his study seeks:

‘to reframe our understanding of the origins of European human rights law by examining it through the lens of political conflicts underway within Britain and France during the period immediately following the Second World War. Free-market conservatives in Britain and social conservatives in France viewed a European human rights charter as a means of enshrining their contested views as the foundation stones of a united Europe’. (page 332)

In this reader’s eyes one of the most important features of Duranti’s account is how leading conservatives of the era (in the UK, but also in France) foresaw Strasbourg’s overall role. From the conservatives’ perspective the real value of an external safeguard would be to the check against extreme left-wing policies (such as nationalisation) that the UK Labour party (or government) could institute with the backing of a compliant (executive-dominated) Parliament. Here we recall that the government at the time of the Convention’s drafting was the Labour, Atlee administration.

So, this aspect of the Conservative’s agenda over the late 1940s and into 1950 was part of an attempt to use a European regime to curb the extreme policies of a rival political party. From that perspective, the immediate inspiration was, clearly, political.

Yet, for today, the key points to grasp are as follows.

A European safeguard was viewed as having valuable potential, precisely as it was an external check.

In the UK that was so, especially, because of the nature of the UK’s constitutional arrangements, which permit the executive to potentially control Parliament (a regime described in the 1970s as an ’elective dictatorship’). Thus, as twenty-first century Conservatives cry foul at a Court with potential to frustrate Parliament’s will on matters such as prisoner voting, we observe that their political forefathers envisaged and promoted a regime to do precisely this, albeit their target (at the time) was mainly the more extreme policies of the left-wing.

Duranti’s account is therefore very significant for the way its brings out how those who conceived the Convention – as opposed to the governments responsible for signing it – saw it as an external check on the excesses of the State, and a safeguard against (what they saw as) the malfunctioning of the national democratic machine.

It underlines how simplistic it would be to claim that the Convention was only intended to protect against the types of gross and systematic violations of human rights associated with Hitler and Stalin. Those advocating withdrawal from the Convention on the basis that today’s Court has lost sight of the origins and ideals of those who drafted a good substantive human rights text need to test their points against Duranti’s analysis. Even before ‘Brexit’, much of the Conservative rhetoric has been in keeping with the notion that Britain has a long tradition in protecting human rights, and does not need Europe’s intervention in this field. That is not necessarily the way that Churchill and Maxwell-Fyfe saw it.

***

Duranti’s book is highly recommended, and, in my view, deserves the accolades and great recognition which it will surely achieve. It should influence debates on how the ECHR is seen today.

To be clear, it does not (it my view) boost the case for those who would like the Strasbourg Court to become more progressive than it already is. Indeed future historians may yet recount that, thanks in large part to British-led efforts to reform the Court at Brighton in 2012, it has become a more ‘conservative’ institution. (As one Strasbourg Judge has put it, the Convention system is in an ‘age of subsidiarity’ – see here).

Above all, Duranti’s account exposes the weakness of the argument that the UK is justified in withdrawing from the Convention on the basis that its Court has somehow totally perverted what European human rights control was all about, given what was intended (at least by the most enthusiastic advocates of the Convention) in the late 1940s.

Those advocating withdrawal often take the line that the UK has a long and proud tradition of human rights protection, which would not be brought into disrepute by UK withdrawal from the ECHR. Duranti’s book underlines what a skewed and short-sighted view that is. As he puts it:

‘A weakening of the European human rights system would render countless individuals, families, civil society groups, local communities, minorities, and political oppositions across European more susceptible to direct discrimination and abuse by the state. The day such an eventuality transpired would be a sad one for those who believe in the principles that Churchill and his fellow conservatives fought so mightily to enthrone in international law’ [[341-342].

***

]]>https://ukstrasbourgspotlight.wordpress.com/2017/04/19/theresa-may-to-remain-faithful-to-the-basic-principles-of-human-rights-found-in-the-original-echr/feed/0bateseddurantiBeslan school siege – some extracts from the judgmenthttps://ukstrasbourgspotlight.wordpress.com/2017/04/13/beslan-school-siege-some-extracts-from-the-judgment/
https://ukstrasbourgspotlight.wordpress.com/2017/04/13/beslan-school-siege-some-extracts-from-the-judgment/#commentsThu, 13 Apr 2017 11:10:26 +0000http://ukstrasbourgspotlight.wordpress.com/?p=1056]]>Today’s Chamber case (here) has been in the news today, and rightly so given the countless tragic human stories behind an event which left 180 children (plus many others) dead.

The purpose of this short post is to highlight certain features of the judgment and their legal significance (I do not claim to have read the whole judgment, but have scanned over it, and what follows is, of course, non-exhaustive).

A first point, aside from the actual judgment itself, is to note that one of the groups of applicants were represented by EHRAC/ Memorial Human Rights Centre (London/ Moscow). We may ponder on the significance of that as we read about Russian crack downs on NGOs working in the human rights field (see, eg, here).

Second, anyone doubting the level of detail and analysis of the Strasbourg Court’s judgment may care to peruse a judgment that is over 150 pages long.

Third, for ECHR lawyers one of the more significant aspects of the case seems to be summed up in what Judge Pinto de Albuquerque observed in his Separate Opinion:

[1] … I am satisfied that the majority remained faithful to the Court’s standards on the use of lethal force in large-scale anti-terrorist operations, dealing with them as with any other law-enforcement operation and refusing to apply the paradigm of the law on armed conflicts to them. I am particularly satisfied that the Article 2 strict criteria of “absolute necessity” and lawfulness were applied to large-scale anti-terrorist operations (see paragraph 596 of the judgment). In other words, in interpreting Article 2, the Court clearly refused to yield to the temptation of reading into the Convention the standards of the law on armed conflicts with a view to lowering the level of protection of human rights enshrined in the Convention [the Judge maintains that this is what the Court did in the case of Hassan v UK regarding Article 5 of the Convention].

[7] … even in the face of the most egregious form of terrorism, a large-scale attack on a school which left more than 330 people dead, the Court stood by its principles on the interpretation of Article 2 of the Convention…

Fourth, indeed the factual background to this case was an appalling act of terrorism, and on a large-scale. The Court has always been highly conscious of such contexts (when relevant) in its case law, and, therefore, the need to adopt a realistic approach to its scrutiny and standard setting. This is in evidence in para 481 of the judgment:

[481]. As an introduction to the examination of the complaints brought under Article 2 of the Convention, the Court confirms that it is acutely conscious of the difficulties faced by the modern States in the fight against terrorism and the dangers of hindsight analysis (see Finogenov and Others v. Russia, nos. 18299/03 and 27311/03, §§ 212-13, ECHR 2011 (extracts)). The Russian authorities, in particular, have been confronted in the past few decades with the separatist movements in the North Caucasus – a major threat to national security and public safety. As the body tasked with supervision of the human rights obligations under the Convention, the Court would need to differentiate between the political choices made in the course of fighting terrorism, that remain by their nature outside of such supervision, and other, more operational aspects of the authorities’ actions that have a direct bearing on the protected rights. The absolute necessity test formulated in Article 2 is bound to be applied with different degrees of scrutiny, depending on whether and to what extent the authorities were in control of the situation and other relevant constraints inherent in operative decision‑making in this sensitive sphere (ibid., §§ 214-16).

Fifth, a significant aspect of the ruling was that the Court was unanimous that the circumstances were such that the Russian authorities had a positive duty to protect, and that it was engaged on the facts. (In language that will be familiar to Convention lawyers, and which has been part of the Strasbourg case for many years, the Court was satisfied that ’it [was] established that the authorities knew, or ought to have known at the time, of the existence of a real and immediate risk to the life of identified individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk’, see para 482).

Sixth, against the above backdrop, a relatively novel feature of the case was that the Court found – unanimously – a violation of Article 2 of the Convention. In effect, this was a violation based on the failure of the Russian authorities to take appropriate steps to frustrate or to try to prevent the hostage crisis occurring in the first place, in circumstances when they should have reasonably been able to take such steps. As the unanimous Court put it:

[491] To conclude, the Court finds it established that at least several days in advance the authorities had sufficiently specific information about a planned terrorist attack in the areas in the vicinity of the Malgobek District in Ingushetia and targeting an educational facility on 1 September. The intelligence information likened the threat to major attacks undertaken in the past by the Chechen separatists, which had resulted in heavy casualties. A threat of this kind clearly indicated a real and immediate risk to the lives of the potential target population, including a vulnerable group of schoolchildren and their entourage who would be at the Day of Knowledge celebrations in the area. The authorities had a sufficient level of control over the situation and could be expected to undertake any measures within their powers that could reasonably be expected to avoid, or at least mitigate this risk. Although some measures were taken, in general the preventive measures in the present case could be characterised as inadequate. The terrorists were able to successfully gather, prepare, travel to and seize their target, without encountering any preventive security arrangements. No single sufficiently high-level structure was responsible for the handling of the situation, evaluating and allocating resources, creating a defence for the vulnerable target group and ensuring effective containment of the threat and communication with the field teams.

In reaching this unanimous conclusion, we observe that the Court once again stressed that it was conscious of the terrorist context:

[492] The Court reiterates that in the preparation of responses to unlawful and dangerous acts in highly volatile circumstances, competent law-enforcement services such as the police must be afforded a degree of discretion in taking operational decisions. Such decisions are almost always complicated, and the police, who have access to information and intelligence not available to the general public, will usually be in the best position to make them (see P.F. and E.F. v. the United Kingdom (dec.), no. 28326/09, § 41, 23 November 2010). This is especially so in respect of counter-terrorist activity, where the authorities often face organised and highly secretive networks, whose members are prepared to inflict maximum damage to civilians, even at the cost of their own lives. In the face of an urgent need to avert serious adverse consequences, whether the authorities choose to use a passive approach of ensuring security of the potential targets or more active intervention to disrupt the menace, is a question of tactical choice. However, such measures should be able, when judged reasonably, to prevent or minimise the known risk. With regard to the above arguments, the Court finds that in the case at issue the Russian authorities failed to take such measures.

Seventh, the Court (by 5 to 2) also found a violation of Article 2 on the basis that the Russian authorities had used overwhelming and inappropriate levels of force when they stormed the school (in reaction to sudden and powerful explosions inside, see para 606), within the context of an ill-prepared on-site command regime/ planning framework. On this see paras 606-609. In this connection, the Court’s overall approach, as set out in para 609 may be worth noting.

[609] As in the Isayeva case (cited above), the Court finds that “the primary aim of the operation should be to protect lives from unlawful violence. The massive use of indiscriminate weapons stands in flagrant contrast with this aim and cannot be considered compatible with the standard of care prerequisite to an operation of this kind involving the use of lethal force by State agents.” It is not for the Court, with detached reflection, to substitute its own opinion of the situation for that of security officers who were required to intervene to save human lives, in an extremely tense situation, facing armed and dangerous individuals. While errors of judgment or mistaken assessments, unfortunate in retrospect, will not in themselves entail responsibility under Article 2, such use of explosive and indiscriminate weapons, with the attendant risk for human life, cannot be regarded as absolutely necessary in the circumstances (see, among other authorities, Dimov and Others v. Bulgaria, no. 30086/05, § 78, 6 November 2012).

The Court made some important decisions under Article 46(1) – see paras 638-641. As the Council of Europe’s web site puts it ‘the Court indicated the need for a variety of measures aimed at drawing lessons from the past, raising awareness of applicable legal and operational standards, and deterring similar violations in the future. It also held that the future requirements of the pending investigation into the incident must be determined with regard to the court’s conclusions about investigation’s failures to date’.

Lastly, I would not want to end this post without stating that I feel a sense of guilt as I, in my luxurious academic setting, comment on the legal aspects of a case which concerned the most appalling human suffering. At this Eastertime I will be thinking of the people of Beslan, the many lives lost and the enduring misery for those concerned.

]]>https://ukstrasbourgspotlight.wordpress.com/2017/04/13/beslan-school-siege-some-extracts-from-the-judgment/feed/1batesed1409610965614_Image_galleryImage__BESLAN_RUSSIA_SEPTEMBER_Extra-territorial derogations from the ECHR for future armed conflicts involving the UK?https://ukstrasbourgspotlight.wordpress.com/2017/03/31/extra-territorial-derogations-from-the-echr-for-future-armed-conflicts-involving-the-uk/
https://ukstrasbourgspotlight.wordpress.com/2017/03/31/extra-territorial-derogations-from-the-echr-for-future-armed-conflicts-involving-the-uk/#respondFri, 31 Mar 2017 10:52:21 +0000http://ukstrasbourgspotlight.wordpress.com/?p=808]]>Last October it was announced that the UK government may derogate from the ECHR in relation to future armed conflicts (see EJIL-Talk analysis here). This prompted the (UK Parliamentary) Joint Committee on Human Rights to launch an inquiry into this matter, details of which may be found on its web site (here). The JCHR called for written submissions on the matter.

I made a written submission (which I hope will appear on the JCHR’s web site soon, along with other submissions). I set out an extract from my submission below (please note footnotes are not included, I am happy to send a copy of my submission to anyone who contacts me: epb3@le.ac.uk)

My submission addresses whether extra-territorial derogations from the ECHR are permissible, and on what basis. I argue that they are, but that their special context requires consideration in relation to the validity of any individual derogation.

Indeed, the relevant case law, and the policy issues arising, are complex, and need careful consideration. In this connection, consider the comments of Lord Wilson in a recent UK Supreme Court case (Abd Ali Hameed Al-Waheed (Appellant) v Ministry of Defence (Respondent) Serdar Mohammed (Respondent) v Ministry of Defence (Appellant) 17 January 2017, [2017] UKSC 2)) concerning the ability of UK armed forces to detain in the context of a non-international armed conflict (which required an appropriate reading of Article 5(1) adjusted to this context, without which, a derogation would, presumably, have been required to maintain the legality of the UK’s actions). Lord Wilson stated:

‘… No doubt there would again be dissentient voices, concerned, in a way understandably, about a perceived dilution of Convention rights. But a vastly more important factor would be in play. For all of us judges, both in Strasbourg and in the United Kingdom, who believe – many of us, passionately – in the value of the Convention in having raised the standards of a state’s treatment of its people across the Council of Europe, its very credibility is at stake in determination of the present issues. Could it be that, by reason of article 5(1), such state contributors to the multinational forces in Iraq and Afghanistan as happened also to be members of the Council of Europe would be legally disabled from effecting internments in Iraq after 28 June 2004, and from effecting internments in Afghanistan beyond 96 hours, even where necessary for the maintenance of security and even pursuant to UN resolutions which, having surveyed the nature of the conflict there, expressly sanctioned internment in such circumstances? Could it be that those contributors to the multinational force would be disabled from acting pursuant to the UN resolutions although fellow-contributors which happened not to be members of the Council of Europe would not be so disabled? Such conclusions would bring the Convention into widespread international disrepute and it is, frankly, a relief for me to have found myself persuaded that they can properly be avoided’, para 143.

I suspect the general issues at play, and the connected matter of extra-territorial derogations, are very likely to reach Strasbourg at some stage. Indeed, these matters are relevant to the integrity of the ECHR system as a whole, as well as its credibility, as Lord Wilson suggests. As such, they would be a prime example of how useful an Advisory Opinion procedure would be for the ECHR (Protocol 16 has yet to enter into force). That said, I wonder how keen the Strasbourg judiciary would be to address the issues given their magnitude and the need for clarity. If and when they do, I do hope they keep Lord Wilson’s words in mind.

This submission is divided into two main parts:
[1]-[7] Address the specific questions raised by the JCHR Inquiry. [not included here]
[8] Addresses the issue of extra-territorial derogations more generally. [included here]

….8. Are extra-territorial derogations from the ECHR permissible? If so, on what basis?
This section proceeds in four main steps.
– Firstly, it briefly examines the rationale for the derogation clause under the ECHR.
– This is to underline why, secondly, it is unrealistic to apply that (same) rationale to an extra-territorial derogation (it is not the situation pertaining in the metropolitan territory – the UK – that is relevant, but that occurring overseas).
– Thirdly, by examining existing ECtHR case law, the section examines the threshold circumstances that (it is submitted) should apply for when a State may lawfully derogate on an extra-territorial basis. Here it is recognized that extra-territorial derogations should be permissible under the ECHR.
– Fourthly, it is observed that the threshold circumstances for when an extra-territorial derogation is permissible is closely connected to the issue of how Strasbourg has already modified human rights standards in the extra-territorial context. Indeed, the way it has done so significantly mitigates the necessity for derogation, or so it seems, albeit there remains some areas which require further clarification in law.8.1 The rationale for the derogation clause (Article 15) under the ECHR and why it does not transfer for extra-territorial derogations.
8.1.1 The substantive text of the ECHR allows for many restrictions on Convention rights (see, for example, Articles 8(2)-11(2)). It is submitted that a survey of the drafting history of Article 15 and related human rights instruments, confirms that the main rationale for the derogation clause was to permit the State, in exceptional circumstances, to take extraordinary measures to protect itself when the regular/ordinary restrictions permitted by Convention rights would be insufficient.
8.1.2 As envisaged by the Convention’s drafters those exceptional circumstances were equated by the need for there to be a ‘war or other public emergency threatening the life of the nation’. However, as noted below, the ECtHR has not adopted a literal understanding of this provision.
8.1.3 The core rationale of the derogation clause was to protect the vital interests of the State’s population when faced with an exceptional threat putting those interests in jeopardy. It was to allow the State, faced with an exceptional crisis, to temporarily compromise the enjoyment of rights for the greater good. Of paramount importance, however, it was protective of the human rights interests of those concerned in the wider sense: the relevant circumstances were envisaged as being deemed important enough to permit curtailment of rights (but never non-derogable rights) on a temporary basis in order to avoid irreparable harm to the public, and its prospective human rights protection. An example of irreparable harm would be the threats that war or civil war posed to the functioning of basic institutions whose continued existence was a pre-condition to the continuance of (or restoration of) democracy and human rights in ‘normal times’.
8.1.4 It is recognized that it is a sweeping statement to suggest that the Convention’s drafters never envisaged the extra-territorial application of the Convention at all. Equally, however, it can be said that there is little to suggest that it is likely that they foresaw the application of the Convention in an extra-territorial context as it exists today. That that is so has been the product of ECtHR case law, especially that of the last 10 years. Moreover, it is reasonable to argue that the breadth and extent of ECtHR case law on Articles such as Articles 2, 3 and 5 exists on a scale that the Convention’s drafters would have found hard to imagine in 1950.
8.1.5 It is for such reasons that it is submitted that it is inappropriate and unrealistic to envisage that the rationale for the derogation clause (as noted above) as a mechanism envisaged for metropolitan territories of States, may be transferred to the extra-territorial context, at least not without significant adjustment and modifications. In short, it is inappropriate to always require a threat to the interests of the metropolitan territory of the State (‘the life of the nation’ there) as a condition of derogation; it is the situation in the extra-territorial unit (potentially thousands of miles away) that counts.8.2 Extra-territorial derogations generally
8.2.1. All preceding ECHR jurisprudence on derogations has concerned measures taken in respect of the metropolitan territory of the derogating State. There is, therefore, no jurisprudence on extra-territorial derogations; that said, statements made by the Court in its extra-territorial (non-derogation) jurisprudence are consistent with the proposition that the ECtHR may regard extra-territorial derogations as acceptable in principle, albeit subject to strict conditions.
8.2.2 I therefore proceed on the assumption that, in principle, extra-territorial derogation is lawful under the ECHR, but would break new ground, and serve as an important precedent. This is why such a derogation must be consistent with the fundamental principles that may be extracted from ECHR case law.
8.2.3 What follows is an attempt to identify what those principles should be. This requires some speculation, for, consistent with what has been said above, it is submitted that there is some validity to the claim made in the Government Memorandum to the JCHR (27 Feb 2017) that the ECHR ‘was a system not designed by its framers to cover [battlefield] operations’, such that ‘[t]he principles under particular consideration by the courts in recent years are thus having to be adapted to a situation for which they were not designed and developed case by case’ (para 4).
8.2.4 That said, ECtHR case law has seen significant adaptations made to the required standards, accommodating many concerns. As such, a key point of what follows is to underline that the onus should be on the government to precisely identify why the regime of human rights protection it would otherwise be bound by – and has been modified to extra-territorial context – constrains it to a point when a derogation is required to achieve the relevant public policy goals at stake.
8.3 Overview of when Article 15(1) can be resorted to – threshold circumstances and extra-territorial standards
8.3.1 There is no ECtHR jurisprudence on how the threshold circumstances for reliance on Article 15(1) (the need for a ‘war or other public emergency threatening the life of the nation’) should be adapted to the extra-territorial context. Novel questions arise, such as which ‘nation[‘s]’ ‘life’ must be ‘threaten[ed]’? For the reasons already stated, I proceed on the assumption that it is the situation prevailing in the extra-territorial unit that counts, assuming the effects of the derogation are to apply there.
8.3.2 That itself raises the question, how serious must the situation be in the extra-territorial unit before the Convention state is entitled to derogate? In other terms, what are the threshold circumstances for reliance on Article 15(1) in this extra-territorial context?
8.3.3 This is a question that only the ECtHR can answer authoritatively. However, it is in the nature of the situation that it is necessary for any derogating State to try to anticipate what the ECtHR’s approach would be. Here it is submitted that there are strong grounds to argue that the Court would have in mind that the Convention’s extra-territorial reach is itself the product of judicial interpretation of Article 1 of the ECHR, and that that would underline the need for a pragmatic approach to be adopted to a derogation made in the extra-territorial context.
8.3.4 In that connection the Court has already adopted a pragmatic approach to both (i) the threshold circumstances for reliance on Article 15(1) (in its jurisprudence to date, concerning metropolitan territories)) and to (ii) extra-territorial applicability of the ECHR. Each will now be (briefly) considered in turn, on the basis that to do so will guide an understanding of how the ECtHR would approach the issue identified in 8.3.2 above.
(i) Threshold circumstances.
a. From its first ever case on derogations (Lawless v Ireland) the Court has adopted a realistic approach to the position of the State and the imperatives it faces when confronted with an exceptional situation or crisis requiring special measures.
b. So, for example, the Court has adapted Article 15(1) to the terrorism context (which was not necessarily envisaged when the Convention was drafted); ‘threat to the life of the nation’ has not been interpreted literally but flexibly (and, for example, the Court does not require the whole nation to be effected by the ‘emergency’). This flexible approach was demonstrated by the willingness of the Court to adapt Article 15(1) to the context of the derogation submitted by the UK after ‘September 11th’ 2001.
c. Taking the ECtHR’s case law overall, I submit that the key rationale for reliance on Art 15(1) can be taken to be the point identified in the former European Commission on Human Rights articulation in the ‘Greek’ case that the threshold/ qualifying circumstances for reliance on Article 15 is that:
‘the crisis or danger [the one meriting derogation in the first place] must be exceptional, in that the normal measures or restrictions, permitted by the Convention for the maintenance of public safety, health and order, are plainly inadequate’ (emphasis added).
d. That is, I submit that the basic purpose of Article 15(1) as it has developed in the ECtHR’s case law is as follows: to allow the State to act in a legally valid way in a situation the nature or magnitude of which is so ‘exceptional’ that ‘normal measures’ – the normal ECHR standards (now very highly developed) for addressing it – can reasonably be assumed to be insufficient.

e. Adapting this to an extra-territorial operation, the relevant conceptual framework would be: there ‘must be exceptional’ circumstances at play affecting the overseas operation such that ‘the normal measures or restrictions, permitted by the Convention… are plainly inadequate’.

(ii) Standards of human rights protection required in the extra-territorial context.
a. The test just identified underlines the importance of appreciating ‘the normal measures or restrictions, permitted by the Convention’ in the relevant context, i.e. the general stance the ECtHR has adopted to standards of human rights protection in the extra-territorial context. Here we observe that there are strong signals that the Court adopts a flexible approach, striking appropriate balances and mindful of the needs and resources of the State acting in good faith.
b. Examples of the Court’s readiness to approach human rights standard setting in a realistic way in this (extra-territorial) context are:

– Jaloud v the Netherlands: the Court adopted a context-dependent approach to the standards required for an Article 2-compliant investigation.
– Hassan v UK: in a case concerning the extra-territorial reach of the Convention, the ECtHR adapted its understanding of the application of Article 5(1) so that it could apply to detention outside peacetime conditions; in the context of an international armed conflict occurring overseas, it held (in effect) that the legally valid basis for detention under Article 5 (and accompanying safeguards) coincided with that applicable under international humanitarian law. On the face of it this case mitigates the need for a derogation from Article 5 when there is an international armed conflict (as opposed to a non-international armed conflict).
– In Hassan the Court also adopted a pragmatic approach to the review of detention required by Article 5(4), i.e. one that had in mind the circumstances and context.

c. In addition to the above, recent case law from the UK Supreme Court (Abd Ali Hameed Al-Waheed (Appellant) v Ministry of Defence (Respondent) Serdar Mohammed (Respondent) v Ministry of Defence (Appellant) ), applying human rights standards under the Human Rights Act, should provide a measure of reassurance to the government. In essence, certain principles derived from the Hassan case were applied to a non-international armed conflict.
d. That said, there remains some legal uncertainty here. Partly this is inherent in the fact that it remains to be seen whether the ECtHR would agree with the approach adopted by the UKSC to various aspects of the UKSC’s ruling. Partly the uncertainty may be derived from the fact that the ruling in Serdar Mohammed was confined to the specific international law background relevant to it (in particular the influence of relevant United Security Council Resolutions), one which may not apply in other overseas operations to be undertaken by the UK.
e. This legal uncertainty entails that there remains some doubts as to what the ‘the normal measures or restrictions, permitted by the Convention’ are in the context of a non-international armed conflict. As such there are also doubts as to when the threshold conditions for an extra-territorial derogation arise (on the basis argued for above). It is, perhaps, in relation to this point that the Memorandum attached to the Minister’s reply to the JCHR dated 27 February 2017 referred to the example of the need to consider derogation ‘if there were to be no or only uncertain power to detain those who were engaged in armed conflict against UK forces’ (para 5).
f. This legal uncertainty may create a real quandary for a State, even though it would be hoped that clarity would be brought to the situation in due course, and following the pragmatic approach the ECtHR has so far displayed.
g. Even so, and dependent on circumstances, the legal uncertainty as to what conduct is or is not permitted under the Convention may entail that there is some, limited room for a derogation to address the legal uncertainty, in order to avoid a potential violation of the ECHR were it to transpire that the action (eg internment in a non-international armed conflict) would otherwise breach Article 5, ECHR.
h. The basis for such a derogation and why, would be for the government to fully substantiate at the time of derogation, and on the premise that, if appropriate, the derogation should be withdrawn (if appropriate) should legal clarity be obtained (eg by case law development).SUMMARY: When precisely can Article 15(1) be relied upon in an extra-territorial context?
8.4 Proceeding on the assumption that an extra-territorial derogation from the Convention would be acceptable to the ECtHR in principle, it is submitted that the applicable conceptual framework for when it is permissible to derogate from the Convention for an overseas operation would be as follows. There ‘must be exceptional’ circumstances at play affecting the overseas operation such that ‘the normal measures or restrictions, permitted by the Convention… are plainly inadequate’. See 8.3.4(i) above.
8.5 When considering whether that test is satisfied, in the extra-territorial setting, the point of departure is to note that the applicable ECHR standards already reflect significant adjustments for that context: they potentially allow for significant restrictions on human rights. See 8.3.4(ii).
8.6 As such, it is submitted that the burden would be on the derogating State (the government) to identify why those standards constrain it to the extent that a derogation is positively necessary.
8.7 It is true that there remains (inevitably) some uncertainty as to the applicability of Convention law to the extra-territorial context, as noted above. This has a potential relevance to when a State may derogate in that context. To the extent that a derogation is proposed on the basis of the legal uncertainty, the onus would remain with the government to identify that legal uncertainty when derogating.
8.8 In all scenarios it would also be incumbent on the derogating State (the government) to minimize the interference with rights. Under the Human Rights Act the validity of the decision to derogate would be reviewable by the domestic courts, as would the question of whether the measures taken were ‘strictly required by the exigencies of the situation’ (see Article 15(1)), albeit an element of ‘deference’ is likely to operate.
8.9 Ultimately it is possible that the ECtHR would address these issues.
END.

]]>https://ukstrasbourgspotlight.wordpress.com/2017/03/31/extra-territorial-derogations-from-the-echr-for-future-armed-conflicts-involving-the-uk/feed/0batesedarmy.aspxIs the UK going to withdraw from the ECHR? What about the Human Rights Act?https://ukstrasbourgspotlight.wordpress.com/2017/03/10/is-the-uk-going-to-withdraw-from-the-echr-what-about-the-human-rights-act/
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With the UK’s relations with Europe in such a state of flux, a few words may be in order on the UK government’s position toward (i) UK membership of the ECHR, and (ii) repeal of the Human Rights Act 1998. The last few years has seen so much speculation on these issues that even UK-based academics may struggle to keep up, or perhaps the better word is ‘decipher’, what the current position is. This is an attempt to do so.

The UK and the ECHR: no immediate plans for withdrawal

Current position: the UK government has ‘no plans to withdraw’ from the ECHR (1 Feb 2017, statement by David Jones, Minister for ‘Brexit’: here (col 1131)).

Concerns: the ‘no plans to withdraw’ position hardly amounts to a positive vote of confidence, and implies that withdrawal could yet form part of the said plans. This is consistent with what now appears like a semi-permanent or ‘standing’ implied threat of UK withdrawal, as if the UK government is holding this like a stick behind its back, to intimidate the Court.

As for the backdrop to all this, reference may be made to Theresa May’s previous comments about the ECHR, and recent press reports. When Home Secretary, Theresa May was not afraid to adopt a publically hostile position toward the ECHR; ill-informed incidents, such as ‘catgate’, do not seem to have put her off. In 2013 her position started to harden: she stated that ‘if leaving the European convention is what it takes to fix our human rights laws, that is what we should do’. Prior to the June 2016, ‘Brexit’ referendum, she argued that there was a greater case for withdrawal from the ECHR than from the EU (this was in April 2016).

After becoming Prime Minister, Theresa May was quick to state that withdrawal from the ECHR was off the agenda – not out of a sudden affection for it, of course, but as there was too much on the UK’s plate dealing with Brexit.

Yet, the implied threat of withdrawal has continued. Most notably, the UK Press recently reported (see here and here) that withdrawal from the ECHR could form part of the Conservative Party’s election Manifesto for May 2020 (the next scheduled election date, although it is not inconceivable that there could be an election before then – UPDATE: taking commentators by surprise, it has transpired that there will now be an election on 8 June 2017. At the time of writing (25 April 2017) the Conservative Party’s manifesto has yet to be published).

To be clear, these were only press reports. But the idea that a decision as important and complex as withdrawal could be considered taken and settled via the blunt instrument of a Conservative manifesto commitment and election victory is, I think, remarkable. The fact that the idea is even being floated says something about current Conservative party attitudes towards the ECHR.

Thus, the concern must be that, by 2020, the pressure will be such that the continued use of an implied threat of withdrawal will culminate in the political need for a manifesto commitment of the type referred to – and who knows that the outcome would be?

Presumably any such manifesto, and proposed withdrawal, would contain a type of a ‘Britain knows best’ on human rights plan. This brings us to how the domestic legal landscape on human rights protection might be reshaped, and the future of the Human Rights Act 1998.

The Human Rights Act to be replaced by a British Bill of Rights… at some point?

Current position: Plans for a British Bill of Rights have been put on hold until Brexit issues have been resolved; however, it seems inevitable that the matter will be returned to by current/ future Conservative administrations, when the opportunity arises.

Concerns: There may be nothing inherently wrong with replacing the Human Rights Act 1998 with a British Bill of Rights, provided the matter is approached in good faith and in a constructive way as regards the protection of human rights and the UK’s relationship with Strasbourg. There, however, lies the concern: all the ‘Background’ evidence suggests that the Conservative Party’s approach would be to use a British Bill of Rights to reduce human rights protection standards, and cause harm to the UK’s relations with Strasbourg, thereby increasing the likelihood of UK withdrawal from the ECHR.

There is a long backdrop to this concern (which I have set out elsewhere: see E Bates, ‘The UK and Strasbourg: A Strained Relationship – The Long View’ in K S Ziegler, E Wicks and L Hodson (eds), The UK and European Human Rights: A Strained Relationship?, (Hart, 2015) (draft version available at SSRN: http://ssrn.com/abstract=2568713). It was graphically evidenced by an October 2014 Conservative party document on human rights protection in the UK (and which was subject to wholesale criticism at the time). The constitutionally self-righteous narrative on display then essentially went as follows: the UK had played a leading role in drafting a good substantive Convention text, which Strasbourg had, over the years, interpreted incorrectly, abusing its power; as such, if things did not change, the UK would be justified in withdrawing from the ECHR.

For the authors of the 2014 document, this was the backdrop to proposed repeal of the Human Rights Act and its replacement by a British Bill of Rights. The aim was to use a new UK human rights landscape to reject those aspects of Strasbourg law that Conservatives regarded as unacceptable, at least for the purposes of domestic law.

In fact, the 2014 document was (as far as I am aware) never settled as Conservative Party policy. By comparison the UK Conservative party Manifesto of May 2015 (Manifesto May 2015), was considerably toned down. It stated (p 60):

‘The next Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights. This will break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK’.

The ‘Brexit’-like’ tone of the second sentence of this extract is notable, although, as noted above, it transpires that ‘Brexit’ itself has pushed reform of the domestic human rights landscape into the long grass (no Draft British Bill ever having been published).

Future outlook

Summing up, there are ‘no plans’ for the UK’s withdrawal from the Convention, whilst repeal of the Human Rights Act and replacement by a British Bill of Rights seems some way off, for now at least. Evidently, however, this does not reflect a thaw in the anti-Strasbourg mood within the centre of power in the UK. This looks set to continue whilst the Conservative party retains power, and one fears that the longer they do so does the chances that matters will culminate in a decision being made about the UK’s membership of the ECHR, post-‘Brexit’ (if not before).

]]>https://ukstrasbourgspotlight.wordpress.com/2017/03/10/is-the-uk-going-to-withdraw-from-the-echr-what-about-the-human-rights-act/feed/1batesedbull-finalStill a strong case for a British Bill of Rights?https://ukstrasbourgspotlight.wordpress.com/2016/12/09/still-a-strong-case-for-a-british-bill-of-rights/
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… I do not look at the process as not having achieved quite a lot. Over the recent period there have been some great moves forward, but there is still more to do.

These were the words of Sir Oliver Heald, Minister for Human Rights (Ministry of Justice), when commenting on the HRA and the case for a British Bill of Rights.

The Minister was appearing (evidence here) before the JCHR last month, concerning its inquiry on the ‘human rights implications of Brexit’. At the end of the session he made some comments about the HRA and the Strasbourg Court. Those comments are set out below. To my reading they amount to the Minister agreeing that, as far as he is concerned, significant progress has been made in the relationship between Strasbourg and the UK over recent years. This is a result of the ‘Brighton’ reform process, and shift in the domestic courts’ approach to section 2(1) HRA since 2009, and other matters.

We still have no real idea when the government will publish meaningful documentation on its proposed British Bill of Rights (see this RightsInfo analysis: ‘Plans To Scrap Human Rights Act Could Be Delayed Until After Brexit’).

The relevant extract of Sir Oliver Heald’s comments are set out below.

The European Court of Human Rights and the convention that underpins it are a very important part of our human rights protection, but there have been concerns about the way in which it has worked since the Human Rights Act was passed in 1998. I mentioned earlier that by 2006, when the Conservatives launched a policy for a British Bill of Rights—I was part of that launch—we pointed to a range of issues that had arisen with the ECHR and the way it had been implemented in Britain. Over the period of the past 10 years we have made considerable progress on some of those. The three issues where I think we have made some progress are that in 2006 we were very concerned that the European Court of Human Rights could not dismiss trivial and hopeless cases and had a huge backlog of cases that was building up. It was really rather inefficient in that way. There was not adequate subsidiarity and sometimes issues were being looked at which should have been dealt with at the domestic level There were other issues, such as the margin of appreciation perhaps not being adequate. So that was one package of measures about how the ECHR was working and its relationship with us.

There was a concern about the difficulty in deporting people to other countries because of how Article 8 operated. There was also a concern, which really came from a case in 2004, that the courts were just slavishly following ECHR judgments and not trying to develop an English jurisprudence around the ECHR. When the 1998 Act was going through I remember making a speech, along with many other people, about the problem that we could end up with a sort of very flat European jurisprudence. Over the period since 2006 we have seen real progress such as the Brighton Declaration which Kenneth Clarke secured, which has helped a lot on those administrative problems. Section 19 of the Immigration Act 2014 deals with the point about Article 8 and how it operates. Then more recently we have seen the courts taking a different approach and having much more of a dialogue with the ECHR. The case of Horncastle in 2009 was seen as something of a watershed in that regard. Although the process which started in 2006 of talking about a British Bill of rights has not resulted in a draft Bill yet—I apologise that we are not bringing one forward immediately, as we said we would—we will do so. But I do not look at the process as not having achieved quite a lot. Over the recent period there have been some great moves forward, but there is still more to do.